HKSAR v. Ho Shing Fung

DCCC 755/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 755 OF 2011

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Reasons for Sentence

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Charges and facts

1.The Defendant used 1 forged American Express Credit Card (“Card A”) to make a purchase of $1,339.50 at a Watsons shop with success (Charge 1) and of $7,470 at a Fortress shop without success (Charge 2).  Upon interception by the police in the vicinity, she was in possession of Card A and 3 other forged American Express Credit Cards.  After arrest and caution, she admitted knowing that all cards were forged. 

All cards were confirmed as forged upon forensic examination.

Defendant’s personal circumstances and mitigation

2.She is now 23 years of age, of a clear record.  She was educated up to F.5 level.  She was unemployed at the time of arrest but had been working as a saleslady from time to time.  From her earnings, she used to contribute to her parents, who lived on public assistance.  She had helped out on a flag day in 2004 and a festivity in 2007. From 1 May 2011 onwards, she has performed voluntary work for 2 months at 2 days/week. 

3.She committed the present offence to repay the finance company which lent her money on a direct-sale venture. She lost $50,000.  She was promised 10% rebate from the credit card scam.     

Sentencing considerations

4.In HKSAR v Cheng Sui-to [1996] 2 HKCLR 128, Yang CJ stated that a sentencing judge had to consider at least the following 5 factors in deciding the level of sentence for credit card frauds:-

“1. The size of the operation e.g. whether it involves large sums of money, whether it concerned a large number of persons or forged credit cards.

2. The planning that has gone into perpetrating the fraud, whether it is elaborate or simple, whether technical skills were used, and to what extent.

3. Whether there is an international dimension.

4. Whether the accused played a major role, e.g. running a syndicate, engaging in actual manufacture, organising the use of forged cards, or whether he is a mere ‘cog in the wheel’ as a courier or a custodian or keeper.

5. Whether there is a plea of guilty.”

5.There are no sentencing guidelines.  Here are a few comparable cases:-

(1) HKSAR v Watt Siu-hung CACC 93/2001:

The applicant used 2 forged cards to obtain goods of over $3,000. The sentencing judge took an overall starting point of 3 years for the offences. Mayo VP, who delivered the judgment of the Court of Appeal, said it was on the high side but not manifestly excessive.

(2) HKSAR v Cheung Ka-wo Johnny [2002] 2 HKC 517:

The appellant used 2 cards to purchase cosmetic products worth over $8,500 in a department store in Causeway Bay (Charges 1 – 3). When he used one of the cards again to buy goods worth over $3,000 in another department store, he was arrested. The Court of Appeal affirmed an overall starting point of 3 years for all charges.

(3) HKSAR v Lau Pui Hang CACC 393/2003:

The applicant supplied a false credit card to PW1 and PW2 each. The three would split the proceeds of purchases. They had made successful test purchases but soon intercepted by the police. The Court of Appeal reduced the starting point from 4 years to 3 years. PW1 and PW2 had pleaded guilty and become witnesses against the applicant. They received eventual sentences of 15 months and 18 months respectively. Their starting points would be about 2½ years if worked back from their guilty pleas and role as prosecution witnesses.

(4) HKSAR v Suen Tat Yeung, Ricky HCMA 709/2006:

The appellant tried to buy a pair of gold bracelets worth nearly $20,000 at a shop in Disneyland. The magistrate adopted a starting point of 2 years. The appellant subsequently abandoned the appeal against sentence. The Court of First Instance remarked that the starting point appeared to be in order.

(5) HKSAR v Tu I Lang CACC 464/2006:

The applicant came from Taiwan to purchase a mobile phone from a Fortress shop with a false credit card. The shop assistant cracked the plot and informed the police. He was arrested with 2 other false credit cards on him. The Court of Appeal reduced the concurrent starting point from 4 years to 3 years.

This case appears to be on all fours with our present one.

Sentencing this Defendant

6.She had used 1 card at the outset whilst having 3 others waiting in line for other purchases but for the interception by the police.  It was a small-scale operation focusing on American Express.  There was no international element.  She was a pawn.  I take a starting point of 3 years for each charge.  One-third off for her pleas of guilty, the sentence is 2 years each.  I reduce each by a further 2 months because of her voluntary work rendered.  The sentence is therefore 22 months each.  By totality, I order for fully concurrent terms.